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November 5, 1998



Before Steadman, Ruiz and RANKIN,[fn*] Associate Judges. [fn*] Sitting by designation pursuant to D.C.Code § 11-707(a) (1995).

The opinion of the court was delivered by: Ruiz, Associate Judge:

[719 A2d Page 968]

James A. Woodard was indicted, along with a co-defendant, James E. Easley, in connection with two attempted robberies, one resulting in murder, in Mount Pleasant in April 1994. *fn1 Easley, the co-defendant, committed suicide while incarcerated pending trial. [719 A2d Page 969]

Woodard was tried by jury and found guilty in connection with the first of the two incidents of attempt to commit robbery while armed, possession of a firearm during a crime of violence or dangerous offense, and carrying a pistol without a license; he was acquitted of all other charges. Woodard was sentenced to ten to thirty years, with a five-year mandatory minimum, for attempted robbery while armed; followed by five to fifteen years, with a five-year mandatory minimum, for possession of a firearm during a crime of violence and a one-year concurrent sentence for carrying a pistol without a license.

We consider Woodard's direct appeal and appeal from denial of his motion to vacate the judgment against him pursuant to D.C.Code § 23-110 (1996). Woodard contends that he was prejudiced by the ineffective assistance of his trial counsel, who failed 1) to move for severance of charges stemming from the two separate incidents; 2) to investigate the voluntariness of a statement made by Woodard to a grand jury and to move that it be suppressed; 3) to request redaction of "other crimes" testimony from Woodard's grand jury statement; 4) to investigate and present alibi witnesses; and 5) to cross-examine for bias the government's key witness to the first incident. He also contends that the trial court erred in denying his § 23-110 motion without a hearing because the court lacked information in the record to resolve several factual issues raised in his motion.

We reverse and remand for a hearing. The trial court erred when it repeatedly explained away trial counsel's inaction as "trial tactics" without a sufficient foundation for doing so, and when it held Woodard to a higher burden than is required for a claim of ineffective assistance of counsel. A hearing is required because there are factual disputes clearly raised by the record and a lack of factual record support for some of the trial court's determinations.

We are mindful that, on remand, the hearing will be held by a judge other than the trial judge, now retired, who considered and denied Woodard's § 23-110 motion. Therefore, although we stop short of granting a new trial, we address those substantive issues that, based on the record, raise concerns that will need to be addressed at the hearing. See Cross v. Harris, 135 U.S.App.D.C. 259, 269, 418 F.2d 1095, 1105 (1969) ("[S]ound judicial administration require[s] us to make our remand order intelligible to the court and parties below."); id. at n. 64 ("The distinction between holding and dictum is not whether the point in question had to be decided in order that the court's mandate could issue. The distinction turns on whether the court, in stating its opinion on the point, believed it necessary to decide the question or was simply using it by way of illustration of the case at hand.") (citing cases); cf. Umana v. Swidler & Berlin, Chartered, 669 A.2d 717, 720 (D.C. 1995) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.") (citations and internal quotations omitted).


A. The Trial

The evidence at trial concerned two separate attempted armed robberies which occurred within several blocks of each other in the Mount Pleasant neighborhood on the night of October 10, 1994, and early morning hours of October 11, 1994.

The Incident at the Easley Home

Robert Easley (Robert), the 17-year-old brother of deceased co-defendant, James Easley (James), testified that he returned to his Mount Pleasant home on the evening of April 10, 1994, at about 9:30 p.m., and found Woodard sitting on the front porch, playing with a black revolver. Woodard greeted Robert, and then said that "[h]e was ready to do something. [Robert] saw what [sic] he was going to rob somebody." James came into the house, spoke with Woodard on the porch, and then left. After James left, Woodard sat down with Robert, pulled out his gun, and began to move it around until Robert told him to "[g]et out of my face before it go off," after which Woodard put the gun down. James returned a while later, "high" on cocaine, and Woodard asked James "was he still going to do that" (emphasis [719 A2d Page 970]

added), and James said "[a]ll right. I be back. I'm going to go find somebody."

After a while, James returned to the house, and Woodard "asked him again, 'You still going to do that?'," to which James responded, " 'I found somebody, Martin's Spanish brother — cousin.' " James left the house, and Woodard sat at the table with the gun in his hand, wiped off its bullets, and then replaced them. James returned, told Woodard that Spanish Martin's cousin was in the backyard, and began to look around the dining room for something to "fake sell" so that they could rob him. As James walked out the back door, Woodard ran out the front door; Woodard's shadow was visible running to the backyard, and then Woodard stood in the backyard, holding the gun. Spanish Martin's cousin ran into the house through the back door, looking scared, and then ran out the front door.

Tomás Mejea, the cousin of a man nicknamed "Martin," testified as follows: a man he identified as "my cousin's brother-in-law" approached him at around 10:30, one night in April 1994, and offered to sell him a chain for forty dollars. After Mejea followed the man to the back porch of his house, the man offered to sell him a pistol, which he declined, and the man then returned to the house. At that point a different black man appeared in the alley and pointed a gun at Mejea. Mejea ran into the house and then out the front door and away. Once he was out on the street, Mejea saw a black man, "[m]aybe . . . the same one as before . . . pointing at me again." Mejea later selected James Easley's picture from a police photo array as the man who lured him to the house, but he failed to identify Woodard's picture in a subsequent photo array, pointing instead to another man and stating that the picture looked like the man with the gun.

Woodard himself did not testify, but the prosecutor read into the record an unredacted grand jury statement given by Woodard in the case against James Easley after prosecutors had told Woodard that he was not a target of their investigation. In that statement, Woodard said that he was at the Easley home on the evening of April 10, 1994, to visit his daughter, whose mother is James's sister. Woodard also confirmed that he was in the Mount Pleasant neighborhood that day "hustling" crack cocaine, and that he had sold James Easley two rocks of crack cocaine on the evening in question.

The Incident at Heller's Bakery

Woodard's grand jury testimony also placed him at the scene of the second incident: James told Woodard that he was going to sell a radio and a gun to people who were working at Heller's Bakery. It occurred to Woodard that James might be going to rob the people at the bakery rather than sell them the gun, so he tried to go after James, but when he got to the bakery, James was already inside and struggling with one of the workers. Woodard said "James, what the hell you doing?," and at that moment, the worker tried to take the gun away and James shot the worker twice. James threatened to shoot Woodard, too, so Woodard ran out the back door of the bakery and fled the scene in a cab.

José Amilcar Arias, the only other worker present at the bakery that night, testified that Antonio Romero, his supervisor, allowed a man he knew as "Jim" to enter the bakery, and that he recognized Jim as someone who had previously gone to the bakery to sell things. Once Jim entered the bakery, he pulled out a gun and pointed it at Romero, and Romero then jumped on Jim. Arias ran to the door to get an iron bar, when the door opened and a person came in. Just then, Arias heard Jim fire a shot at Romero. The other man tried to grab Arias, and as Arias was running, with the other man following him, he heard a second gunshot. Arias identified James Easley's picture from a police photo array the morning after the fatal shooting, and again in court, but he testified that he would not be able to recognize the second man who grabbed him by the door.

B. § 23-110 Motion

After he was convicted in connection with the incident at the Easley home involving the attempted robbery of Tomás Mejea, Woodard filed a motion to vacate the judgment pursuant to D.C.Code § 23-110, contending that his trial counsel performed so ...

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